Public Bill Committee

[Mr. Joe Bentonin the Chair]

Clause 6

Type of provision that may be made by orders

Amendment proposed [this day]: No. 96, in clause 6, page 5, leave out lines 22 to 24 and insert—
‘(1) The Court may make orders specified in subsections (3), (4) and (5) below.’.—[Mr. Hogg.]

Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we will discuss the following amendments: No. 97, in clause 6, page 5, line 29, leave out ‘Examples of’.
No. 98, in clause 6, page 5, line 31, after ‘orders’, insert ‘may’.
No. 99, in clause 6, page 5, line 40, leave out ‘Examples of’.
No. 100, in clause 6, page 5, line 42, after ‘orders’, insert ‘may’.
No. 101, in clause 6, page 6, line 4, leave out ‘Examples of’.
No. 102, in clause 6, page 6, line 5, after ‘orders’, insert ‘may’.
No. 103, in clause 6, page 6, line 25, leave out from ‘orders’ to ‘prohibitions’ in line 27 and insert ‘may not include’.

Nick Herbert: At the end of the previous sitting, I was discussing the amendments to clause 6 that are in the name of my right hon. and learned Friend the Member for Sleaford and North Hykeham. He expressed concern about the ambit of the prohibitions, restrictions and requirements that that the Bill will allow under serious crime prevention orders.
His amendments seek to address his specific concern that clause 6(3) does not set out the nature of such prohibitions, but provides only a non-exhaustive listof examples of prohibitions that can be made. The listis similar, although not identical, to the list of prohibitions and restrictions related to control orders, to which serious crime prevention orders are directly analogous. There are some significant differences, andI would like to ask the Minister about at least twoof those. It is important that we understand how comprehensive the prohibitions and restrictions might be before we permit any of them to go forward in an open-ended manner.
Section 1 of the Prevention of Terrorism Act 2005, which is entitled, “Power to make control orders”, contains some provisions similar to those in clause 6(3) of the Bill, as well as additional specific obligations that can be placed on an individual. They include requirements on an individual to
“allow himself to be photographed”
and to
“co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means”,
which permits tagging. There is also a requirement on the individual to “surrender his passport”.
Those three requirements of the 2005 Act, whichall relate to control orders, could be made underclause 6(3), because the list that it contains non-exhaustive. Unless those provisions were specifically ruled out, which I do not believe they have been, it will be possible to enforce not only the significant restrictions in clause 6(3), which are set out only as examples, but the additional ones specified under the control order legislation. We need to focus on how restrictive those conditions could be. Subsection (6) says that the restrictions may relate to private dwellings.
The Government clearly intend the measures to be very wide indeed. In the White Paper, “New Powers Against Organised and Financial Crime”, which preceded the Bill, the Government discussed the kind of conditions that could be included in serious crime prevention orders under the proposed legislation. They conceded:
“For a civil order not to be considered criminal, and thus attract the additional protections of article 6 ECHR, the conditions attached must be designed to prevent harm, not be punitive.”
My argument is that many of the conditions in the clause add up to potentially punitive measures.
As the Government then conceded, there is a difference in the way in which antisocial behaviour orders operate and how control orders and serious crime prevention orders work. The comparison has been made frequently. ASBO conditions are prohibitive and are not used to require certain courses of conduct. The paper noted that specifically and that, in relation to terrorist control orders, Parliament had chosen to specify in broad terms the conditions that could be imposed under the Prevention of Terrorism Act 2005 to which I have referred.
The conditions include requirements to “behave in certain ways”. They are requirements to do something; they are not only prohibitions. The paper said that that was
“an additional power we are keen should apply to these orders too.”
The sweep of the potential restrictions is immense. They will apply not only to people’s homes; they will not just prohibit people from doing things in the way in which the ASBO legislation works, but they will require people to do things. Let us consider the analogous powers of control orders. It is worth bearing in mind exactly the sort of thing that control orders have required people to do.
Let us consider the 18 people who were subjected to control orders in January this year to whom Lord Carlile’s report referred. All 18 are required to reside at a specific residence, 10 of whom are subject to curfews of between 12 and 14 hours a day. That is what the Government have attempted in their restrictions of people and their movements in respect of control orders. The legality of such measures remains to be seen. The courts have said that restrictions are likely to be unlawful under the convention. The case is currently subject to appeal, and I shall return to it in a minute.
I argue that curfewing and that sort of detention amounts not to a preventive condition, but to punishment. However, even if we put that aside and look at the remaining conditions that have been attached to control orders and which could be attached equally under the provisions in the non-exhaustive list, we can see that they are very tough. All 18 of the people subject to control orders must permit entry to their homes to police officers and persons authorised by the Secretary of State. Of those people, 16 have had to surrender their travel documents and must not leave the UK. I am sure that that provision would be permitted under clause 6(3)(f) because it has a specific requirement in relation to an individual’s travel.
More than half of the people subject to control orders have to wear an electronic monitoring tag and report each day to a monitoring company. They are subject to a restriction on communications equipment in their residence. They cannot maintain or use more than one bank account and must provide statementsof that account. They must provide the Home Office with details of their employment and one person has restrictions on the specific type of employment in which he can engage.
The last two conditions are particular relevant for the potential operation of serious crime prevention orders. Again, in their White Paper, the Government have been absolutely clear that they wish to employ such measures if serious crime prevention orders are to operate successfully, and state:
“Given the acquisitive nature of organised crime, it is particularly important to be clear that the court could impose particular restrictions on the subject’s financial dealings, including for example requiring them only to use notified financial instruments (credit cards, bank accounts) and restrictions on the amount of cash they are permitted to carry.
We are also keen to ensure the orders include a power either compulsorily to purchase businesses or property or otherwise to require individuals to divest ownership of certain possessions which have been used to facilitate serious crime.”
We are talking about two potential scenarios under which those immensely onerous conditions could be attached. One is the scenario to which the Minister referred this morning, which is when people have been convicted of serious crimes. The Bill would give the courts the power to impose orders alongside the conviction that would prevent them from engaging in criminal activity.
Let us put that on one side for a second and focus on the second category of people who could be subjectto those incredibly onerous conditions. Such people need not have committed any criminal offence. We understand that. As I pointed out before lunch, there is no necessity under this legislation for the courts to consider the alternative of prosecution. There is that legal necessity in relation to control orders and the Prevention of Terrorism Act. It is not written into this legislation. The Minister assures us that these measures are not intended as an alternative to prosecution, but the authorities are not required to surmount any hurdle—as they are in relation to control orders—which requires them, in association with the chief of police, to examine whether there is sufficient evidence to mount a prosecution.
Therefore, the individuals concerned may not have committed an offence. They may have engaged only in conduct that facilitated the offence. As we discussed this morning, that conduct might merely have been one of omission. The definition of serious offence, which they may be said to have engaged in, can be made by the court. It may be something that the individual was not even aware was an offence.

Vernon Coaker: Without repeating the debate that took place this morning, it is simply not the case that someone could be made the subject of a serious crime prevention order because of an omission, or because they have forgotten to do something. If such a case were to get to court, it would fail the test of reasonableness. The respondent could say, “Nobody told me.” If they demonstrated that to the court, the court would throw it out. One can make these arguments, but it is not the case that it will happen.

Nick Herbert: I said that the person in question might not have done something, but they might have committed an offence of omission. That is accordingto the legislation as it is drafted. The defence of reasonableness would be one that the person in question would have to mount. The burden of proof moves on to that person.

Douglas Hogg: There may be another point that my hon. Friend would like to make. In cases of omissions, it is not open to the respondent to say that the omission was reasonable. Subsection (2)(a) refers to an act, and an omission is not an act. [Interruption.]

Nick Herbert: Yes, I think clause 39 specificallysays that an act is to include an omission, and that is part of the problem with the definition. Omissionsare included in the legislation. Before the Minister intervened, I was making the point that in additionto all of these circumstances under which a person could arrive at the situation in which a serious crime prevention order is being placed upon them, the evidence that has been assembled could be hearsay evidence.

Geoffrey Cox: The Minister is almost certainly right. If it were a single incident of omission, it is highly unlikely thata judge would say that one of these orders was proportionate. Let me propose to my hon. Friend, and perhaps he might suggest it to the Minister, that thereis a situation in which a bookmaker or a bureau de change had, on four or five occasions, been proved to have accepted criminal money, not knowingly but simply because their systems were weak and they had been negligent in the way that they had approached it.  They might well be subject to requirements under such an order, which could be in relation to the way that they conducted their business in future.

Nick Herbert: I am grateful to my hon. Friend and I look forward to the Minister’s response. The evidence that will have been adduced to require this person potentially to answer for their conduct, which could be an act of omission, could be hearsay evidence. It is the Government’s categorical intention to allow the use of hearsay evidence. They wish to pursue the remedy of a civil order—giving rise to a quasi-criminal prevention order with the sanction of a criminal offence should it be breached—precisely so that hearsay evidence can be allowed. All of those things could happen, but under clause 6(3) a person could still end up attached to a set of conditions amounting to a deprivation of libertyas serious as if that person had been convicted in a criminal court and sentenced to a term of imprisonment. And that is entirely setting aside the ignominy that would be attached to that individual should an orderbe made.
It is worth reflecting on what Lord Carlile said about the operation of control orders in his second report, published on 19 February:
“The key to the obligations is proportionality. In each case they must be proportional to the risk to national security presented by the controllee. The minimum obligations consistent with public safety are the only acceptable basis for control orders.”
But we have already faced Government arguments rejecting that test of proportionality being built into the legislation. In this indirect acquisition of a serious crime order, the burden lies on the defendant to show that his conduct was reasonable. There is no test of proportionality required of the court in the execution of the orders.

Ian Lucas: I am listening carefully to the hon. Gentleman, but I cannot understand why he is continually referring to control orders in our debate on serious crime orders. One is an executive order, in particular circumstances, and the other is the proposal before us, which we are debating.

Nick Herbert: Oh dear. I think that the hon. Gentleman has missed the point. Let me try and explain—none of the hon. Members was present on Second Reading, when the issues were discussed extensively. The orders are directly analogous to control orders. The origin is exactly the same: a determination by the Government to use a civil procedure to effect a criminal enforcement. The process began with ASBOs, moved to control orders, has now moved to serious crime prevention orders and, if the previous Prime Minister’s pledge is to be honoured, will move to violent offender orders. The principle underlying all the orders is the same: evidence falls short of the ability to mount a criminal conviction, so the Government seek an alternative way of restraining the individuals. That alternative is to use a civil procedure, with a lower evidential standard than in criminal proceedings, but with a criminal condition attached. The new orders lie at the boundaries between civil and criminal legislation.
With respect to the hon. Gentleman, it is important to understand the association that control orders have with serious crime prevention orders. He is absolutely right that there is a difference—examined this morning—between the imposition of serious crime prevention orders by the court and the application by the Secretary of State to make a control order. However, there are also ways in which serious crime prevention orders have a more serious effect than control orders, one of which I have already alluded to: the control order legislation includes the test that a prosecution should have been mounted. The order cannot go ahead unless that test is fulfilled. That test is absent from the legislation on serious crime prevention orders.

Joe Benton: Order. I believe that this morning’s debate on clause 5 discussed reasonableness, proportionality and intent at great length. Clause 6 is about the types of provision that can be made. There is a danger that we are going over old ground, which I merely point out at this stage.

Nick Herbert: I accept your advice, Mr. Benton, but I was simply answering a question. I have tried to direct my remarks to the comparisons of the specific requirements that may be made under the control order regime as can be made under this regime of serious crime prevention orders. It is important that we understand what kind of restrictions could be made, how they could operate and how successful they may be; because the terms of the amendment are that there is a non-exhaustive list of prohibitions and restrictions which also apply under the control order legislation.

Vernon Coaker: The hon. Gentleman is supportingthe amendment, which would make an exhaustive list available to the court. If that exhaustive list was placed in clause 6, what would happen if the court wanted to impose a less restrictive condition?

Nick Herbert: The Minister will have gatheredby now that, since he has accepted none of our amendments to build in safeguards to the operation of these orders, we are searching for any way in which their impact can be safeguarded in future parts of the legislation. That is not a surprising thing for us to do. The legislation is currently immensely wide in its ambit—there are no restrictions placed on it. If the Minister thinks the terms of our amendment are unhelpful and that there is some other way in which this could be safeguarded then I would be happyto listen.

Vernon Coaker: I was just pointing out to the hon. Gentleman the difficulty of the amendment. If the court is required to consider an exhaustive list with no flexibility or discretion, then if it wished to impose a lesser restriction because it was appropriate to that individual case, it could not be done.

Nick Herbert: I do not accept that argument inthe first place and it cannot be used to justify a non-exhaustive list. If that was the case, why have a list at all, other than to indicate the kind of measures that could be made? Following the logic of the Minister’s argument, why not make the legislation the same asin ASBOs, which have a test of necessity? Under section 1 (6) of the Crime and Disorder Act 1998, the requirement for the issuing of ASBOs says:
“The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant”
There is no list—exhaustive or otherwise—of the kind of prohibitions that may be made. We are well aware of the creativity of the courts in the operation of ASBOs over the past two years. That may be acceptable for ASBOs, which are much lower level remedies, but in our judgment it would not be acceptable for these orders which can impose punitive restrictions.
Simply describing these measures as serious crime prevention orders does not necessarily mean they will operate as prevention orders, because the kinds of measures included in here are punitive. That is why it is necessary to define much more carefully what kindof measures could be made. The Government have already conceded that its initial attempt in this legislation to set up the possible range of measures was far too broad. They conceded an amendment tabled by the official Opposition in the Lords in relation to the discretion of law enforcement officers in this manner. But the fact that these are only examples means that there could be almost any other similar restrictions placed upon us. That gives rise to too much uncertainty.
This legislation is not specific or clear enough. The example of control orders and a control order regime, the collapse of the various restrictions that have been placed upon people, the testing of those restrictionsin court, the fact that the control orders have been breached—none of these things have given us confidence in the potential for successful operation of these restrictions and certainly not that the civil liberties of the people concerned will be properly safeguarded.

Jeremy Browne: I welcome you to the Chair, Mr. Benton, for this sitting. I rise in support of the amendments tabled by the righthon. and learned Member for Sleaford and North Hykeham. I shall first set my reasons in context, trying not to stray too far—or indeed at all—beyond the narrow confines of the debate.
 There is a fundamental ideological difference between people in my party—and, by extension, Conservative Members present—and Labour Members. I start from the assumption that everyone is born free, and that only in the most essential circumstances should the state seek to curtail their liberties. By contrast, I think that a lot of Labour Members—maybe this is why we have difficulty reaching consensus—start with the assumption that the state is essentially a benign force, and that we must justify as individuals any freedoms that we wish to exempt from the ambit of state authority. If they start from that assumption, their point is understandable—that somebody might at some point do something that they disapprove of, and that the best bet is therefore to restrict that individual’s liberties as soon as possible to ensure that the chances of their doing it are minimised. I do not take that as my starting point. I say in a spirit of concession that if Labour Members do not understand the fundamental attachment to liberty that is the starting point for my political beliefs, I can see why they would have difficulty realising why I object to the clause, and indeed to large parts of the Bill, and why I support the amendments.
I shall discuss a few specific concerns. I am particularly attached to the amendment that would make the clause more specific, because it seems strange for legislation merely to list examples of sanctions that may be used against the individual. On that basis, I cannot see why any Government would ever try to frame legislation in specific, watertight terms that the individual citizen can understand. Why bother listing any examples at all? Why not give untrammelled power and authority to the state through the courts to implement any measure that it sees fit?
Individual citizens of this country are entitled to know when they read the laws, and when they send us here as Members of Parliament to frame those laws, that we will make them sufficiently specific that they will know where they stand in terms of their rights and duties as citizens of this country. Merely to state examples that do not create that degree of certainty must be of concern to them, and to me as a member of this Committee.
I said earlier—this was a point of contention with the Minister, or possibly another Labour Member—that the measures given as examples would restrict the liberty of the individual to a point as close as possible, short of imprisonment, to containing it absolutely. That point was disputed by an hon. Member—I cannot remember which one—who appeared to imply thatthe measures were less harsh than that. But they are extremely widely drawn.
I turn, for example, to clause 6(3)(e), an example of the
“prohibitions, restrictions or requirements that may be imposed on individuals”.
They include
“the use of any premises or item by an individual”.
The term “any premises” is pretty widely drawn. I do not know how “premises” will be interpreted—whether it will include any building, or any building that people go to sleep in—nor “any...item” of any sort. That is just one example.
Another is “an individual’s working arrangements”. That is widely drawn as well. I do not know whetherit will restrict travel arrangements, for example—although travel is captured in paragraph (f) as well:
“an individual’s travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise).”
The whole clause is drawn up in the most wide-ranging and unspecific terms. That means that it is so general that it leaves the individual citizen far from certain about what sanctions exist, if they were to transgress.
The list I touched upon merely consists of examples, so harsher measures may well be put in place thanthe ones before us. Starting from the assumption that the individual citizen is a free man or woman and that the state must seek to curtail their liberty only in the most exceptional circumstances, it is only reasonable that the state must do better in describing what that curtailment will involve than a list of widely drawn examples.

Ian Lucas: I had not intended to contribute to this debate, but I am motivated to do so because of the grotesque characterisation of the views of the Labour party and my hon. Friends that we have just heard. I say to the hon. Gentleman that I am a great admirer of John Stuart Mill and his essay “On Liberty” and, in particular, his distinction between self-regarding and other-regarding actions. I support the central thrust of the legislation because I regard the acts that are prevented by serious crime prevention orders as acts that amount to other-regarding actions, thus entitling the state to intervene for the benefit of society as a whole.

Vernon Coaker: Good afternoon, Mr. Benton. It is nice to welcome you back to your second sitting of the Committee. I also welcome all other hon. Members to the Committee this afternoon.
I was just looking for a particular clause—I think that it is towards the end of the Bill. With respect to the remarks made by the hon. Member for Taunton on the protection of civil liberties, which are relevant to clause 78, I look forward to him voting to delete that clause, given that the Lords, including the vast majority of Conservative and Liberal Democrat peers, has put in what most of us would regard as a step too far for civil liberties. Under that measure, a police constable could close off a whole area and stop and search anyone on the mere suspicion that a gun is in that area.
With clause 74, as with clause 6 and the amendment, there is always a balance to be struck. My hon. Friend the Member for Wrexham made that point, and indeed, I made it this morning. To be brief about it, because this goes to the core of the Bill, we seek to prevent crime and to reduce harm. We do that, to a certain extent, by curtailing an individual’s civil liberties, following the successful application for a serious crime prevention order in the High Court. We do that to protect the civil liberties of the wider public and those suffering as a consequence of serious crime.
As I have said, the Government believe that inthe vast majority of circumstances serious crime prevention orders will be given alongside a criminal conviction, and we would expect criminal conviction to take place. That is why the applicant authorities for serious crime prevention orders are the prosecuting authorities, which will be best placed to know whether they should be pursuing a criminal prosecution or, following that prosecution, whether it would also be appropriate to pursue a serious crime prevention order.

Douglas Hogg: I am grateful to the hon. Gentleman for giving way. I will put my question to him now, so that time is given for advice to be tendered before he finishes his speech. In an intervention on my hon. Friend the Member for Arundel and South Downs, he said that the Government wanted a non-exhaustive list so that a court could impose a more lenient condition than that set out in clause 6(3). Would he care to give an example of the kind of lenient order that does not fall within the  examples set out in clause 6(3)? I do not expect an immediate answer because that would be unfair, but I hope that after he has received some advice he will give us illustrations.

Vernon Coaker: The answer to the right hon. and learned Gentleman’s point is simply that we do not want to fetter the discretion of the court. I was making the point that if there is an exhaustive list of conditions that the High Court has to take account of, which it can use with regard to the respondent or the subject of a serious crime prevention order, the court has no discretion.
My point about things that are not part of the exhaustive list, whether they are more or less severe penalties, is that discretion should be available to the court. In my view, the vast majority of courts and High Court judges prefer that type of discretion. The judiciary often says, whether in the civil or criminal part of our system, that to deal appropriately with individuals or cases before it, it needs flexibility and discretion. I do not always listen to the judiciary, but that is a perfectly reasonable point and it is what we have tried to achieve.
I want to say a little about control orders. I am sure that all hon. Members know this, but it is important for the record to draw out some of the differences between control orders and what is being proposed. I agree with my hon. Friend the Member for Wrexham; we are discussing serious crime prevention orders. Conjuring up images of control orders makes for a good debating point, but these are serious crime prevention orders and will deal with completely different types of situations.
I will concede to the hon. Member for Arundel and South Downs that the two are similar in a couple of regards, but those similarities are limited. They are both civil orders, breaching either is a criminal offence and they are both preventative. However, serious crime prevention orders are very different from control orders in the following respects and this is what my hon. Friend the Member for Wrexham keeps pointing out. Non-derogating control orders are made by the Secretary of State with the permission of the court. There is an almost political input into the decision. That is not the case with serious crime prevention orders, which are a function of the judiciary and the court, not of any Minister. No Minister has any input into whether a serious crime prevention order is made. It is purely a judicial decision, and that is absolutely right.

Douglas Hogg: Will the hon. Gentleman give way?

Vernon Coaker: I will just make a couple more points. Control orders have closed hearings, unlike serious crime prevention orders; they have special advocates, unlike serious crime prevention orders; they are aimed at terrorism, unlike serious crime prevention orders; they can be made without notice to the subjects, unlike serious crime prevention orders; and, intercept evidence can be used in closed control order hearings, unlike with serious crime prevention orders. I know that you will rule me out of order if I go down this route too far, Mr. Benton, but I think it important to put on the record the real differences between control orders and serious crime prevention orders and to support the point that my hon. Friend the Member for Wrexham has made.

Douglas Hogg: Of course, the Minister is quite right in saying that a serious crime prevention order will be made by the court, but I am sure that he would be the first to concede that the terms of the order being sought will, at least initially, be outlined by the enforcement agency, whether it be the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions. Therefore, the Executive will be proposing the terms of the order to the court, albeit—I am happy to acknowledge—that the ultimate shape of the order is a matter for the court.

Vernon Coaker: Absolutely. The final decision will be a matter for the court. I am making it very clear to the Committee that, unlike with control orders, where the Secretary of State has an involvement—in other words, a political person—the issuing of serious crime prevention orders is a judicial process, which determines whether or not somebody should be the subject of an order. That is one of the most fundamental differences that we can draw attention to.

Kali Mountford: Is my hon. Friend as concerned as I am that analogies were being drawn with ASBOs? The real difference with ASBOs is the behaviour involved. With ASBOs, of course, the behaviour that we are trying to prevent is antisocial behaviour; in this instance, the behaviour that we are trying to prevent is serious crime. That distinction should also be drawn.

Vernon Coaker: Again, my hon. Friend makes a good point, one that reinforces continually the point that I need to make, which is that this is a civil process and this is a civil order, and it is not a part, in any way, of the criminal process.

Nick Herbert: The Minister correctly draws attention to the specific differences between control ordersand the proposed serious crime prevention orders. However, would he not concede, in all fairness, that in the Government’s own White Paper, “New Powers Against Organised and Financial Crime”, a clear link is traced between the development of these civil orders, both ASBOs and subsequent civil orders, and that analogies are drawn with the control orders? Therefore, to suggest that it is not appropriate to discuss thetwo alongside each other is, perhaps, rather unfair to our party.

Vernon Coaker: May I correct something that I have meant to correct for a long time? The hon. Gentleman gives me a good chance to do so. That paper was a Green Paper; I just put that point on the record, as a fundamental point of this debate. It was a Green Paper and we moved straight from it to the Bill.
I would like to point out to the Committee, and indeed to the hon. Gentleman, that I felt that in his remarks he was trying to draw a picture that suggested that serious crime prevention orders were, given the nature of the restrictions that could be placed on an individual, very similar to control orders. For the benefit of the Committee, I was trying to draw out the differences between serious crime prevention orders and control orders.
I would ask the Committee to resist these amendments, because they go completely against the point of these orders, which is to encourage an innovative and effective approach to preventing the harm caused by serious crime. Amendments Nos. 96 to 102 would have the effect of making the examples of potential conditions for orders that are set down in clause 6 an exhaustive list. Potentially, that would have the perverse effect, as I have already said, of stopping the courts from imposing a less onerous order on the subject than the examples set out in clause 6, even ifit would have the potential to reduce harm more effectively.
We all know how innovative and adaptable serious criminals can be; we need to provide law enforcement with the means to be just as adaptable in response. Clause 6 provides guidance to the courts, by setting out the types of conditions that we envisage might be used. It is unlikely that the courts will go beyond the conditions set out in clause 6, but it is vital that we do not hamper their discretion to do what is most effective in the circumstances of the cases before them.

Geoffrey Cox: Does the Minister envisage that the powers available to the judge under clause 6(3) would include the imposition on an individual of some form of personal restraint, for example an electronic tag?

Vernon Coaker: We do not envisage that electronic tagging should be allowed, no; if we had done so, we would have included electronic tagging in the Bill.

Nick Herbert: Could the Minister be more specific? Will he tell us whether or not the use of an electronic tag would be permitted by the Bill?

Vernon Coaker: What I am saying is that we do not propose that electronic tagging should be allowed. If we had envisaged that it would be allowed, it would have appeared in the Bill. If the hon. Gentleman wants me to go further than that, he will get the same answer.

Douglas Hogg: The Minister is not facing up to his problem, because, as he knows well, the Court can impose any condition and we are only dealing here with examples.

Vernon Coaker: The right hon. and learned Gentleman is quite wrong in the statement that he has just made. I think that on reflection he will agree that the Court cannot impose any condition that it wants. As he knows, and as I continually repeat, the High Court is a public authority for the purposes of the Human Rights Act. It therefore has to take account of that Act and cannot, as he knows, simply impose any condition that it wants. Although we have listed in the clause examples of conditions that the High Court may impose should it believe that it will prevent crime and reduce harm, it has to take account of the Human Rights Act.

Douglas Hogg: I am sorry to press the Minister on this.It is plain from clause 6(6) that a curfew order canbe imposed. So too, therefore, can a tagging order, because it is necessary to ensure that the curfew order is kept to.

Vernon Coaker: The right hon. and learned Gentleman is trying in a roundabout way to suggest that the sort of curfew that would be imposed would be almost synonymous with house arrest. That is not the case. As he knows, when imposing a serious crime prevention order on an individual the High Court would not be able to impose house arrest by confining somebody to their house for nearly 24 hours a day. That would not be proportionate or appropriate, and the court will not be able to do that because it must have regard to the Human Rights Act. It simply will not do that. In the very unlikely event that it did, it would be subject to appeal. The High Court is a public authority for the purposes of that Act and will not impose house arrest.

Geoffrey Cox: With respect, I completely agree that it is a public authority and governed by the principle of proportionality in relation to the invasion of freedom, but a tag can be used to track an individual’s whereabouts, indicate whether he has entered forbidden premises and monitor with whom he associates. There is nothing in the Bill to prevent that, and simply attaching a tag might well be thought much more proportionate than to impose a series of stringent requirements. There seems to be nothing in theclause to prevent a judge, referring to the list of considerations, from saying, “I think we’ll attach a tag to you. That way, we’ll know where you are at any one time and that you aren’t going into particular premises.” I can see nothing to prevent that, and it might well be proportionate in some cases.

Vernon Coaker: As I have said, we do not propose that electronic tagging should be included in the list. I have said what I want to say on the matter.
Amendment No. 103 perhaps stems from the same concern as was expressed on numerous occasions in another place and repeated on Second Reading in this House. There is a misconception that the clause could lead to the subject of an order being kept under house arrest. I reassure hon. Members that that is absolutely and categorically not the case. Such a restriction would not be compatible with convention rights, so there is no way that the applicant authority would apply for, nor the High Court impose, such an order.
It is possible, however, that a reasonable and proportionate prohibition, restriction or requirement in relation to a private dwelling might be an effective way to prevent harm from being caused by serious crime. We cannot think of everything that might possibly prove in the future to be an effective means of preventing serious crime, and we want the courts to be able to innovate within the framework of the examples set out in the clause. For those reasons, I ask the Committee to resist the amendment if the right hon. and learned Member for Sleaford and North Hykeham does not feel able to withdraw it.
A part of the clause that we have not really touched upon is subsection (5), which specifies that law enforcement agencies can specify certain details ofhow conditions in an order relating to the answeringof questions, the provision of information or the production of documents are to be complied with. There was a great deal of concern about the way in which our policy intent was originally given effect.
May I say to my hon. Friend the Member for Arundel and South Downs and his hon. Friends that, the Bill having gone through another place prior to coming here, I hope he accepts that, although we have resisted a large number of the amendments that heand his hon. Friends and indeed the hon. Member for Taunton tabled, we did listen to a large number of the points that were made in the other place and changed the Bill accordingly. This is one of those areas.
The Government listened to the concerns expressed in another place and acted to address them. The original drafting of this subsection has been tightened considerably.

Nick Herbert: The Minister has been giving way generously, for which I am grateful. I should like to press him a little further in relation to the power under subsection (6), the conditions that can be imposed on a private dwelling. He said that the circumstances in which restrictions may be made cannot be foreseen and he wanted to give discretion to the court. This is such an important potential measure, however, and one that affects an individual’s home—a place regarded in this country as generally sacrosanct to avoid restricting an individual’s freedom within his or her own home—that it is frankly wrong for the Government not to give some indication of what they have in mind, in terms of the kind or extent of the restrictions that might be possible under this legislation.
 I wondered, when the Minister talked about proportionate restrictions, whether he might give this Committee some indication of what kind of restrictions these would be.

Vernon Coaker: Of course we do not expect somebody, as a result of these serious crime prevention orders, to be restricted to their home for 24 hours. That would clearly be disproportionate. The idea of having curfews is contained in other legislation, such as antisocial behaviour legislation. It is perfectly possible to impose a proportionate and reasonable curfew on someone as a result of an—[Interruption.] I will give way in a minute—antisocial behaviour order. As I say, it is a matter for the courts to determine. We certainly would not expect one or two hours or 24 hours. It may be that somewhere towards the middle of that and lower, may be appropriate.
Let me just read something. I thought this might come up about human rights and so on. Article 8 — Right to respect for private and family life:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
We all agree with that.
“There shall be no interference by a public authority with the exercise of this right”—
again, we all agree with that—
“except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
My hon. Friend the Member for Wrexham is not in his place, but it does go back to the whole nub of the argument. I do not think the right hon. and learned  Member for Sleaford and North Hykeham isarguing the complete opposite of what I am saying. I understand the point he is making. It does mean, however, even within human rights legislation, that it is regarded as acceptable sometimesto impose on an individual quite serious restrictions. The human rights legislation recognises that where it is in the interests of the broader community, where it is in the interests of others, it can be in those circumstances appropriate.

Douglas Hogg: I think perhaps the Minister does not realise how he has undercut his own argument on tagging, because the proviso to article 8 is precisely the provision that the enforcement agencies would rely upon in their application for a serious crime prevention order in support of a tagging provision. They would rely on the proviso, which I happen to have in front of me, in order to support the imposition of a tagging requirement.

Vernon Coaker: I do not accept what the right hon. and learned Gentleman has just said.
We have had an interesting debate and discussion on this group of amendments and, with the remarks I have made, I ask the right hon. and learned Gentleman to withdraw his amendment or, if that is not the case, for the Committee to oppose it.

Douglas Hogg: I am not going to withdraw the amendment but I do accept that the argument has been thrashed out pretty thoroughly. In the course of my interventions on the Minister I have really put the points I wish to put by way of a response. I am not seeking, as it were, an opportunity to make an extended speech but I will not be withdrawing the amendments.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of the debate onthe amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.

Question accordingly agreed to.

Clause 6 ordered to stand part of the Bill.

Clauses 7to 9 ordered to stand part of the Bill

Clause 10

Right of third parties to make representation

Douglas Hogg: I beg to move amendment No. 104, in clause 10, page 7, line 20, at end insert—
‘(1A) No serious crime prevention order shall be made unless the High Court is satisfied that it would be fair to the person making representations under subsection (1) and was proportionate having regard to the interests of that person and to the public interest.’.

Joe Benton: With this it will be convenientto discuss the following amendments: No. 105, in clause 10, page 7, line 26, at end insert—
‘(2A) No variation of a serious crime order may be made unless the High Court is satisfied that the variation would be fair to the person making representations under subsection (2) and was proportionate having regard to the interests of that person and to the public interest.’.
No. 106, in clause 10, page 7, line 32, at end insert—
‘(3A) No serious crime order shall be discharged, in whole or in part, if the High Court considers the discharge to be unfair to the person making representations under subsection (3) or to any person affected by it, or disproportionate having regard to the interests of any person and to the public interest.’.
No. 113, in clause 18, page 10, line 29, at beginning insert ‘Subject to subsections (4) and (4A)’.
No. 114, in clause 18, page 11, line 4, at end insert—
‘(4A) If a change in circumstances is identified under subsection (4), the court may vary the serious crime prevention order to the extent that the court considers that the order has become unfair to the subject of the order or that the terms ofthe order are disproportionate having regard to that person’s interests or to the public interest.’.
No. 115, in clause 19, page 11, line 41, at end insert—
‘(3A) If a change in circumstances is identified under subsection (3) and the court considers that the order or any provision thereof has—
(a) become unfair to the subject of the order, or
(b) disproportionate having regard to the interests of that person and the public interest,
the court may discharge the order or any provision thereof to the extent that it thinks fit.’.
No. 125, in clause 21, page 13, line 17, at end insert—
‘or if it considers that there has been a change of circumstances and that, by reason of that change, the order has become unfair to any person affected by it including the person who is the subject of the order’.
No. 126, in clause 21, page 13, line 29, at end insert—
‘or by the person who is the subject of the order’.

Douglas Hogg: The amendments are designed to give greater protection to third parties who are affected by these orders. As suggested in an earlier debate, third parties can be affected, as they may have dealings with  a person who is the subject of a serious crime prevention order, and their rights will have been prejudiced bythe order.
 The Bill enables third parties to make representations under three circumstances: when the original order is made, when there is an application to vary it, and when there is an application to discharge it. I entirely agree with the proposition that third parties who are affected should have an opportunity to make representations. However, looking at the Bill itself, I find no criteria that would enable the court to determine whether to accede to the representations made by third parties.
The Government are clearly conscious of that point. If one looks at paragraph 3.6 of the Green Paper on page 37, they address the question of what thirdparty rights should be. It refers us to the European convention on human rights: to article 8 on privacy and family life, and to article 1 of the first protocol, which deals with interference with property.
However, I think that we should be more precise. When we are dealing with a matter of this importance the Bill should make the criteria absolutely plain. Therefore, I am trying to incorporate in the Bill a requirement that the order should not be made by the High Court unless it would be fair to the person making the representations, and was proportionate—having regard to the interests of that person and to the public interest—and that similar criteria should be brought into play, mutatis mutandis, on the other two applications to vary and to discharge.
In fact, that would do little more than what the Government say in the White Paper that they want to do. However, I am very reluctant to rely on the convention, because it is expressed in general terms and is not, in my view, sufficiently explicit in the protection that it gives the third parties, and is, therefore, not an adequate safeguard. I very much hope that the Committee will place in the Bill something that would constitute a more effective safeguard for the rights of said parties, whose interests might be quite seriously prejudiced.

Nick Herbert: I rise briefly to support the amendment. The Minister will know that the rights of third parties was an issue that the Government sought to consult on in their Green Paper, and that it was one of the areas where concerns were expressed aboutthe potential impact of the orders. To be fair, the Government have sought to address the concerns, as has my right hon. and learned Friend.
In responding to the various issues that we have raised, the Minister has relied on the notion of proportionality—that the courts will behave in a proportionate manner. I agree with my right hon. and learned Friend that it would be much more satisfactory if those concepts were written into the Bill, so that we could feel safer about the operation of the orders. Therefore, I hope that the Minister will respond sympathetically to what my right hon. and learned Friend suggests.

Vernon Coaker: First, I thank the hon. Member for Arundel and South Downs and the right hon. and learned Member for Sleaford and North Hykehamfor the comments that they made about how the Government have tried to respond to the concerns expressed with respect to the matter. I appreciate those remarks.
I am fast becoming something more of an expert on the matter. People joke with me that I will have a wig and gown by the end of the proceedings, although I do not know whether that is appropriate for a civil process. I say that because the process in a civil court comes up in our considerations. The “Civil Procedure Rules”, which, as I understand it, is the bible for civil courts, talks of the overriding objective of the courts. Those rules are a new procedural code
“with the overriding objective of enabling the court to deal with cases justly. Dealing with a case justly includes, so far as is practicable—ensuring that the parties are on an equal footing...dealing with the case in ways which are proportionate”.
That is the way that the High Court judge has to deal with the cases before him. I quoted from the procedure because I think that it is extremely important; it is not just me asserting it. There is a requirement on the High Court to act in a just and proportionate way.
We have discussed in much detail the Government’s confidence in the country’s senior judiciary to act in a way that is fair and proportionate, so I will not go on too long about the amendment. Suffice it to say that I do not feel that we need to include the amendment. As I have pointed out, it would provide an obligation on the courts to act in a way that they are already obliged to do. Clause 10 provides a strong safeguard for those third parties who might be collaterally affected by the provisions of an order. Those third parties have a right to make representations to the court when they would be likely to be significantly adversely affected by the order or, as the case may be, by variation or discharge.

Geoffrey Cox: Will the Minister clarify a point of doubt I have from reading through the clause? Could a person who did not wish the order to be varied or discharged be heard? Should a member of the public feel, were a serious crime prevention order to be lifted, that they would suffer, would they be able to appear in order to argue for its continuation?

Vernon Coaker: Yes, they would.

Douglas Hogg: If the Minister looks at my amendment No. 106, he will find that the point is explicitly addressed.

Vernon Coaker: Given the way that the court operates, the point made by the right hon. and learned Gentleman is covered; the answer is yes.
In operating that safeguard, the courts will have regard to what is proportionate and fair, whether or not we tell them to do so. The amendments are therefore not needed. I emphasise that my noble and learned Friend Baroness Scotland made it clear in another place that the procedure for the orders would require the applicant authorities to bring to the attention of the court the expected impact of the orders on third parties. Those procedural and legislative safeguards will ensure that the rights of third parties are effectively protected.
In relation to the proposed obligation to have regard to the public interest, the court will already be considering what is in the public interest when imposing the orders. Under clause 1(1)(b), the court will make an order only when it would protect the public by “preventing, restricting or disrupting” involvement in serious crime. Under clause 1(3), the terms of the order must also be appropriate for the purpose of “protecting the public”. For those reasons, I ask the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg: I will not withdraw the amendment. Let me make one general point.
Time and again in our debates, the Minister says, “Well, look, the High Court and the Crown courts are bound by certain duties, set out in legislation or the convention, namely to act fairly and proportionately,” and he points to various articles. The logical conclusion of that approach is to assert that we will never need to incorporate the safeguards into legislation becausethe underlying and underpinning legislation already applies across the board. I do not agree with that approach. The safeguards should be incorporated into every Bill under which penalties or evil consequences would follow.

Vernon Coaker: To clarify matters and to ensure thatI do not misunderstand the right hon. and learned Gentleman, safeguards incorporated are incorporated into the Bill. My understanding is that he does not think they are sufficient. That seems to be the point of disagreement between us.

Douglas Hogg: Forgive me, but in that context we are looking primarily at clauses 7 to 11. Those are procedural safeguards—for example, that an individual must be over 18, or that the said parties have the right to make representations. What is lacking in the Bill is not procedure—the procedure for making representations is provided for—but the criteria on which individuals must rely when seeking to discharge, vary or oppose the making of an order.
I am trying to incorporate into the Bill guidance to the courts, along with the concepts of justice and proportionality. The Minister says in reply that it is quite unnecessary as it can be found in some of the articles of the convention. It is perfectly true that some of the articles of the convention will have an application; I accept that, but I do not accept that it is right to omit such protection from the Bill simply because the relevant provisions may be found within the articles of the convention—which may or maynot apply.
I turn to the McCann case. The Minister will remember that article 6.2 was held not to apply to McCann as it was not a criminal case. The plain truth is that we cannot see clearly, at least not with complete certainty, which of the articles will be applied by the courts—for example, when an application is made by a third party—and which will be disregarded. It is our duty to include in the Bill those safeguards that we deem to be appropriate, and not have to rely on other legislation that may or may not have an impact.
Those are the only points that I wish to make, but I shall not be withdrawing my amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Clause 10 ordered to stand part of the Bill.

Clause 11

Notice requirements in relation to orders

Douglas Hogg: I beg to move amendment No. 107, in clause 11, page 8, line 7, at end insert—
‘(1A) The subject of a serious crime prevention order is not bound by it unless, not less than 56 days before the date on which the application for the making of the order was heard, the subject was served with a notice setting out the terms of the proposed order together with a copy of all the written evidence and a summary of all the oral evidence that would be relied upon.’.

Joe Benton: With this it will be convenient to discuss amendment No. 108, in clause 11, page 8,line 11, at end insert
‘but if a court is satisfied that the subject of a serious crime prevention order has not received that notice and is not otherwise aware of its terms, the notice shall be deemed not to have been served.’.

Douglas Hogg: These amendments have two quite separate purposes. The purpose of the first is that the person against whom the order is sought should be given due notice of the terms of the order and of the evidence that is to be relied upon. The purpose of the second amendment, differently, is that in appropriate circumstances the deemed notice will be disapplied.
May I explain briefly what I have in mind? It is a matter of natural justice that a person against whom an order is sought should be told in good time the terms of that order. It is in accordance with the principles of natural justice that the prospective subject of the order should have a clear indication of the nature of the case being put against him—or her—so that he can respond to it.
It is not clear from the Bill what the procedure will be for giving notice of the orders sought for satisfying the court of the requirements. The Bill is silent on that point; perhaps rules will be made later that will give guidance. However, as a matter of general principle, due notice should be given of the terms of the relief being sought and of the nature of the evidence.
The second amendment relates to the effect of the notice. There is a provision for deemed notice, which is to be obtained by sending it by recorded delivery tothe last known address. Consequences flow from that, namely, that the person is bound by the order and if that person is in breach of the order, penal sanctions attach.
However, there may well be wholly reasonable circumstances when, notwithstanding the fact that the notice was sent to the last known address, it was not received. The person who was the subject of the order but who did not receive it should be given the ability to go to the court and ask for the notice to be disapplied. I am prepared to accept that this is one area in which the reverse burden of proof is probably appropriate, and the onus of proving non-receipt should lie with the person to be affected by the order. In terms of natural justice, both the provisions, or something like them, should be incorporated in the Bill.

Vernon Coaker: If the right hon. and learned Gentleman will bear with me, I may say something at the end of my remarks that will be helpful to him, to show that we try to listen—

Crispin Blunt: Why not say it at the beginning?

Vernon Coaker: Mr. Benton, I have pointed out the number of times we agreed with the Opposition in the House of Lords and amended the Bill accordingly. We tabled an amendment on armed robbery, which we included in the schedule. The schedule was voted against, even though it included something that the Opposition wanted. I was about to say something reasonably positive to the right hon. and learned Gentleman and I get scoffed at—my confidence is seeping away as we continue.
On amendment No. 107, the civil procedure rules provide for notice to be given to the proposed subject of an order when an application for an order has to be made. Under those general rules, the notice period is usually three days. I am afraid that—this is where I differ with the right hon. and learned Gentleman—I cannot support the idea of acquiring a notice periodof 56 days because I believe that that would be impractical. It could have the perverse effect that, where an order could prevent an immediate harm, law enforcement and the applicant authority would have to wait nearly two months before they could seek an order in the High Court. The people who might be harmed by the serious criminal behaviour that the order is designed to prevent would want us to accept that such a delay in preventing harm was inappropriate.
I am confident that, as part of giving effect to the overriding objective, an adjournment could be granted, if to do otherwise would cause injustice. However, with regard to the right hon. and learned Gentleman’s amendment, we will consider what an appropriate period of time would be. It might be that three days is too short, although we feel that 56 days is too long.We want to consult the applicant authorities andother authorities. We would like him to withdraw the amendment, with my commitment that we will look at the issue. However, to be clear, we think that 56 days is too long.

Douglas Hogg: The Minister might be right in saying that 56 days is too long; I can see arguments against me on that point. I would also be pleased to know whether his commitment extends to giving notice of the evidence on which the application would depend, because there is no current obligation for the authorities to tell the prospective subject of the order what that evidence is.

Vernon Coaker: The right hon. and learned Gentleman is pushing it now, and all I can say is that I havemade a commitment with respect to the amendment. Without making a commitment, I will look at the second point that he made with respect to the amendment.
Amendment No. 108 focuses on the requirement in clause 11 that an order cannot take effect unless the subjects have either been given a notice setting outthe terms of the order or were represented at the proceedings at which the order was made. Under the amendment, no notice would have been given if it could be shown that the notice was not received. The provision is not necessary because section 7 of the Interpretation Act 1978 already makes provision about the service of notices in the post. In particular, it provides that the rules on service by post will not apply if it appears that a notice served by post was not received. Having made those comments, I wonder whether the right hon. and learned Gentleman would consider withdrawing his amendment.

Douglas Hogg: Breaking the habit of a lifetime, I intend to be collegiate.

Crispin Blunt: But not a team player?

Douglas Hogg: But not a team player. I understand the point about 56 days and I am perfectly prepared to accept, as I have already indicated, that the Minister might be right in saying that 56 days is too long. I very much hope that the Minister will accept that natural justice requires that the person who is made the subject of the order knows the nature of the case and, preferably, the evidence that is relied upon when the order is sought. But in the spirit of non-team-playing collegiate behaviour, without prejudice to what I may do on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at nineteen minutes past Three o’clock till Tuesday 3 July at half-past Ten o’clock.